Friends of the Earth v. Gaston Copper , 204 F.3d 149 ( 2000 )

Opinion on Rehearing En Banc
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRIENDS OF THE EARTH,
INCORPORATED; CITIZENS LOCAL
ENVIRONMENTAL ACTION NETWORK,
INCORPORATED,
Plaintiffs-Appellants,
v.
No. 98-1938
GASTON COPPER RECYCLING
CORPORATION,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-92-2574-3)
Argued: October 25, 1999
Decided: February 23, 2000
Before: WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS,
MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judges Widener, Murnaghan, Wilkins,
Williams, Michael, Motz, Traxler, and King joined. Judge Niemeyer
wrote an opinion concurring in the judgment. Judge Luttig wrote an
opinion concurring in the judgment, in which Judge Niemeyer joined.
Senior Judge Hamilton wrote an opinion concurring in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & MILLIAN,
L.L.P., Washington, D.C., for Appellants. Rufus Justin Smith,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus Curiae. Harold Weinberg Jacobs, NEXSEN,
PRUET, JACOBS & POLLARD, L.L.P., Columbia, South Carolina,
for Appellee. ON BRIEF: Kathleen L. Millian, TERRIS, PRAVLIK
& MILLIAN, L.L.P., Washington, D.C.; Robert Guild, Columbia,
South Carolina, for Appellants. Lois J. Schiffer, Assistant Attorney
General, Greer S. Goldman, David Shilton, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Curiae.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Friends of the Earth (FOE) and Citizens Local Environmental
Action Network (CLEAN) brought a citizen suit against Gaston Cop-
per Recycling Corporation under the Clean Water Act. 33 U.S.C.
§§ 1251-1387 (1994 & Supp. III 1997). Plaintiffs allege that Gaston
Copper has been illegally discharging a variety of pollutants into a
South Carolina waterway. Wilson Shealy, a CLEAN member who
owns a lake only four miles downstream from Gaston Copper's facil-
ity, testified that the illegal discharges caused him and his family to
reduce their use of his lake. CLEAN also submitted various federal,
state, and private studies as evidence that the pollutants released by
Gaston Copper adversely affected or threatened Shealy's lake. The
district court dismissed the case, holding that plaintiffs lacked stand-
ing because they had not demonstrated sufficient injury in fact. Dis-
missing the action, however, encroaches on congressional authority
by erecting barriers to standing so high as to frustrate citizen enforce-
ment of the Clean Water Act. We hold that Shealy, and hence
2
CLEAN, have standing to sue. We thus reverse the judgment and
remand for a determination of whether Gaston Copper has discharged
pollutants in excess of its permit limits.
I.
A.
Congress enacted the Federal Water Pollution Control Act Amend-
ments of 1972, better known as the Clean Water Act,"to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). This legislation constituted "a
major change in the enforcement mechanism of the Federal water pol-
lution control program." American Petroleum Inst. v. Train, 526 F.2d
1343, 1344 (10th Cir. 1975) (internal quotation marks omitted). Prior
to 1972, the focus of federal efforts to abate water pollution was mea-
surement of the quality of receiving waters. See, e.g., Water Quality
Act of 1965, Pub. L. No. 89-234, 79 Stat. 903. But the great difficulty
in establishing reliable, precise limitations on pollution based solely
on water quality targets led to substantial enforcement problems. See
EPA v. California ex rel. State Water Resources Control Bd., 426
U.S. 200, 202-03 (1976). In fact, the use of water quality standards
as a control mechanism was found to be "inadequate in every vital
respect." S. Rep. No. 92-414, at 7 (1971), reprinted in 1972
U.S.C.C.A.N. 3668, 3674.
The Clean Water Act therefore shifted the focus of federal enforce-
ment efforts from water quality standards to direct limitations on the
discharge of pollutants -- i.e., "effluent limitations." See 33 U.S.C.
§ 1311; Natural Resources Defense Council, Inc. v. EPA, 915 F.2d
1314, 1316 (9th Cir. 1990). Whereas the previous scheme required
proof of actual injury to a body of water to establish a violation, Con-
gress now instituted a regime of strict liability for illegal pollution
discharges. See, e.g., United States v. Winchester Mun. Utils., 944
F.2d 301, 304 (6th Cir. 1991). Government regulators were therefore
freed from the "need [to] search for a precise link between pollution
and water quality" in enforcing pollution controls. S. Rep. No. 92-
414, at 8, reprinted in 1972 U.S.C.C.A.N. at 3675. Rather, they could
simply determine whether a company was emptying more pollutants
3
into the water than the Act allowed in order to detect a violation of
the statute.
The centerpiece of the Clean Water Act is section 301(a). This sec-
tion provides: "Except as in compliance with this section and [other
sections of the Act], the discharge of any pollutant by any person
shall be unlawful." 33 U.S.C. § 1311(a). And in section 402 of the
Act, Congress established the National Pollutant Discharge Elimina-
tion System (NPDES), which authorizes the issuance of permits for
the discharge of limited amounts of effluent. Id. § 1342. The avail-
ability of such permits simply recognizes "that pollution continues
because of technological limits, not because of any inherent rights to
use the nation's waterways for the purpose of disposing of wastes."
Natural Resources Defense Council, Inc. v. Costle , 568 F.2d 1369,
1375 (D.C. Cir. 1977) (internal quotation marks omitted). Permit
holders must comply not only with limitations on the amount of pol-
lutants they may discharge, but also with a variety of monitoring, test-
ing, and reporting requirements. See, e.g., 33 U.S.C. § 1318.
Both the Environmental Protection Agency (EPA) and individual
states (with EPA approval) may issue NPDES permits. See id.§ 1342(a), (b). Accordingly, the State of South Carolina has estab-
lished an NPDES permit program administered by the Department of
Health and Environmental Control (DHEC). See S.C. Code Ann.
§§ 48-1-10 et seq. (Law. Co-op. 1976 & West Supp. 1998).
Critical to the enforcement of the Clean Water Act is the citizen
suit provision found in section 505. 33 U.S.C. § 1365. Section 505(a)
states that "any citizen may commence a civil action on his own
behalf against any person . . . who is alleged to be in violation of an
effluent standard or limitation under this chapter." Id. § 1365(a). An
"effluent standard or limitation" is defined to include any term or con-
dition of an approved permit. See id. § 1365(f). Citizens are thus
authorized to bring suit against any NPDES permit holder who has
allegedly violated its permit. A successful suit may result in the award
of injunctive relief and the imposition of civil penalties payable to the
United States Treasury. See id. § 1365(a).
Section 505(g) sets forth the statutory standing requirement for the
citizen suit provision of the Clean Water Act. Id. § 1365(g). Specifi-
4
cally, it defines "citizen" as "a person or persons having an interest
which is or may be adversely affected." Id. Congress has indicated
that this provision confers standing to enforce the Clean Water Act to
the full extent allowed by the Constitution. See Middlesex County
Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 16
(1981) (citing S. Conf. Rep. No. 92-1236, at 146 (1972), reprinted in
1972 U.S.C.C.A.N. 3776, 3823, which notes that the term "citizen"
in the Clean Water Act reflects the Supreme Court's decision in
Sierra Club v. Morton, 405 U.S. 727 (1972)).
B.
Defendant Gaston Copper owns and operates a non-ferrous metals
smelting facility in Lexington County, South Carolina. At this plant,
Gaston Copper treats contaminated storm water and releases it into
Lake Watson, an impoundment on Gaston Copper's property. Lake
Watson's overflow is then discharged into the environment by way of
Boggy Branch, a tributary of Bull Swamp Creek. Bull Swamp Creek
in turn flows into the North Fork of the Edisto River, which lies 16.5
miles downstream from the discharge point.
When Gaston Copper purchased the operation in 1990, the facility
was covered by an NPDES permit issued by DHEC to the plant's pre-
vious owner. DHEC reissued the permit to Gaston Copper with an
effective date of March 1, 1991. This permit allowed Gaston Copper
to discharge wastewater containing limited quantities of pollutants,
including cadmium, copper, iron, lead, mercury, nickel, PCBs, and
zinc, from Lake Watson into Boggy Branch. The permit imposed pH
limits as well. The terms and conditions of the permit included the
monitoring and reporting of effluent discharges. Gaston Copper was
also required to abide by a schedule of compliance for meeting its
effluent limitations.
Plaintiffs FOE and CLEAN are two non-profit environmental orga-
nizations dedicated to protecting and improving the quality of natural
resources. One of FOE's stated objectives is "to combat and eliminate
water pollution." CLEAN exists "to clean up South Carolina's envi-
ronment" and to "educat[e] South Carolinians about environmental
issues affecting them as citizens and ways to address those issues."
5
Wilson Shealy is a member of CLEAN who lives with his family
four miles downstream from Gaston Copper's facility. Shealy has
resided on this property since 1964. His land contains a 67-acre lake
that was created by damming Bull Swamp Creek. Shealy and his fam-
ily fish, swim, and boat in the lake. Specifically, Shealy claims that
he fishes in the lake approximately every other week and swims in it
about twice per year. He occasionally eats the fish that he catches in
the lake. Further, Shealy's grandchildren, who live with him in the
summer, swim and fish in the lake nearly every summer day.
Shealy claims that the pollution or threat of pollution from Gaston
Copper's upstream facility has adversely affected his and his family's
use and enjoyment of the lake. He limits the amount of time that his
family swims in the lake because of his concern that the water is pol-
luted. He also limits the quantity of fish that they eat out of fear that
Gaston Copper's chemicals have lodged in the fish. Shealy states that
if it were not for this concern about pollution, he would fish in his
lake more often, eat the fish he catches more often, and allow his fam-
ily to swim in the lake more often. He also alleges that the actual or
threatened pollution diminishes the value of his property. Shealy has
heard people refer to his lake as "the polluted pond."
Guy Jones is a member of both FOE and CLEAN. He is the owner
and president of a canoe company that runs trips on the Edisto River.
Jones claims that his concern that Gaston Copper is polluting the
Edisto River affects his enjoyment of canoeing and swimming. He
also claims that his concern about the water quality undermines his
confidence in his company's ability to market its trips to the general
public.
William McCullough, Jr., is a member of FOE who scuba dives in
the Edisto River. He claims that he is concerned that the waters into
which he dives may be contaminated. McCullough is particularly
troubled by the possible presence of heavy metals. He states that he
would be less likely to dive into water that he knows to contain pollu-
tants.
On September 14, 1992, FOE and CLEAN filed a citizen suit in the
United States District Court for the District of South Carolina pursu-
ant to section 505 of the Clean Water Act. They alleged that Gaston
6
Copper had repeatedly violated the terms and conditions of its
NPDES permit at its Gaston facility. Specifically, plaintiffs claimed
that Gaston Copper had exceeded its permit's discharge limitations on
numerous occasions, failed to observe its permit's monitoring and
reporting requirements, and failed to meet its schedule of compliance.
Plaintiffs sought declaratory and injunctive relief to prevent further
permit violations, as well as the imposition of civil penalties and
costs.
Nearly six years after suit was filed and after a six-day bench trial,
the district court declined to rule on the merits of the case. The court
instead dismissed plaintiffs' complaint for lack of standing, holding
that none of plaintiffs' members had shown injury in fact. See Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp. , 9 F. Supp. 2d
589 (D.S.C. 1998). A divided panel of this court affirmed the district
court's judgment. See Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 179 F.3d 107 (4th Cir. 1999). We granted rehearing
en banc and now reverse.
II.
A.
Article III of the Constitution restricts the federal courts to the
adjudication of "cases" and "controversies." The threshold require-
ment of standing is "perhaps the most important" condition of justi-
ciability. Allen v. Wright, 468 U.S. 737, 750 (1984). The standing
inquiry ensures that a plaintiff has a sufficient personal stake in a dis-
pute to render judicial resolution appropriate. See id. at 750-51. The
standing requirement also "tends to assure that the legal questions
presented to the court will be resolved, not in the rarefied atmosphere
of a debating society, but in a concrete factual context conducive to
a realistic appreciation of the consequences of judicial action." Valley
Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982).
To meet the constitutional minimum for standing,"[a] plaintiff
must allege personal injury fairly traceable to the defendant's alleg-
edly unlawful conduct and likely to be redressed by the requested
relief." Allen, 468 U.S. at 751. This formula includes three elements:
7
(1) injury in fact; (2) traceability; and (3) redressability. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The injury in fact
prong requires that a plaintiff suffer an invasion of a legally protected
interest which is concrete and particularized, as well as actual or
imminent. See id. at 560. The traceability prong means it must be
likely that the injury was caused by the conduct complained of and
not by the independent action of some third party not before the court.
See id. Finally, the redressability prong entails that it must be likely,
and not merely speculative, that a favorable decision will remedy the
injury. See id. at 561.
While each of the three prongs of standing should be analyzed dis-
tinctly, their proof often overlaps. Moreover, these requirements share
a common purpose -- namely, to ensure that the judiciary, and not
another branch of government, is the appropriate forum in which to
address a plaintiff's complaint. See Allen, 468 U.S. at 752.
In most kinds of litigation, there is scant need for courts to pause
over the standing inquiry. One can readily recognize that the victim
of an automobile accident or a party to a breached contract bears the
kind of claim that he may press in court. In other sorts of cases, how-
ever, the nexus between the legal claim and the individual asserting
the claim may not be so self-evident. Standing inquiry in environmen-
tal cases, for example, must reflect the context in which the suit is
brought. In some instances, environmental injury can be demarcated
as a traditional trespass on property or tortious injury to a person. In
other cases, however, the damage is to an individual's aesthetic or
recreational interests. The Supreme Court has made it clear that such
interests may be vindicated in the federal courts. See, e.g., Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 120 S. Ct. 693,
705 (2000) (effect on "recreational, aesthetic, and economic interests"
is cognizable injury for purposes of standing); Lujan v. Defenders of
Wildlife, 504 U.S. at 562-63 (purely aesthetic interest is cognizable
for purposes of standing); Sierra Club v. Morton , 405 U.S. at 734("Aesthetic and environmental well-being, like economic well-being,
are important ingredients of the quality of life in our society . . .
deserving of legal protection through the judicial process.");
Association of Data Processing Serv. Orgs. v. Camp , 397 U.S. 150,
154 (1970) (interest supporting standing "may reflect aesthetic, con-
servational, and recreational as well as economic values" (internal
8
quotation marks omitted)). But because these and other noneconomic
interests may be widely shared, the Supreme Court has cautioned that
environmental plaintiffs must themselves be "among the injured."
Sierra Club v. Morton, 405 U.S. at 735. If it were otherwise, the Arti-
cle III case or controversy requirement would be reduced to a mean-
ingless formality.
Courts must therefore examine the allegations in such cases "to
ascertain whether the particular plaintiff is entitled to an adjudication
of the particular claims asserted." Allen, 468 U.S. at 752. Such scru-
tiny is necessary to filter the truly afflicted from the abstractly dis-
tressed. Courts discharge this duty by asking such questions as: "Is
the injury too abstract, or otherwise not appropriate, to be considered
judicially cognizable? Is the line of causation between the illegal con-
duct and injury too attenuated? Is the prospect of obtaining relief from
the injury as a result of a favorable ruling too speculative?" Id. If the
plaintiff can show that his claim to relief is free from excessive
abstraction, undue attenuation, and unbridled speculation, the Consti-
tution places no further barriers between the plaintiff and an adjudica-
tion of his rights.
B.
In addition to meeting the "irreducible" constitutional minimum,
Lujan v. Defenders of Wildlife, 504 U.S. at 560, an individual must
also satisfy any statutory requirements for standing before bringing
suit. As noted earlier, the citizen suit provision of the Clean Water
Act confers standing on any "person or persons having an interest
which is or may be adversely affected." 33 U.S.C.§ 1365(g). The lan-
guage chosen by Congress confers standing on a "broad category of
potential plaintiffs" who "can claim some sort of injury," be it actual
or threatened, economic or noneconomic. National Sea Clammers,
453 U.S. at 16-17.
The Supreme Court recognized in National Sea Clammers that this
grant of standing reaches the outer limits of Article III. Id. at 16 ("It
is clear from the Senate Conference Report that this phrase was
intended by Congress to allow suits by all persons possessing stand-
ing under this Court's decision in Sierra Club v. Morton."). Thus, if
9
a Clean Water Act plaintiff meets the constitutional requirements for
standing, then he ipso facto satisfies the statutory threshold as well.
C.
Finally, an association may have standing to sue in federal court
either based on an injury to the organization in its own right or as the
representative of its members who have been harmed. See Warth v.
Seldin, 422 U.S. 490, 511 (1975). An organization has representa-
tional standing when (1) at least one of its members would have
standing to sue in his own right; (2) the organization seeks to protect
interests germane to the organization's purpose; and (3) neither the
claim asserted nor the relief sought requires the participation of indi-
vidual members in the lawsuit. See Hunt v. Washington State Apple
Adver. Comm'n, 432 U.S. 333, 343 (1977).
FOE and CLEAN assert representational standing on behalf of
their members who have been harmed or threatened by Gaston Cop-
per's discharge. The parties in this case contest only whether the first
prong of representational standing -- i.e., whether any member of
FOE or CLEAN has individual standing -- has been satisfied.
III.
The district court held that FOE and CLEAN lacked standing under
Article III because they failed to establish that any of their members
suffered an injury fairly traceable to Gaston Copper's alleged permit
violations. The court pointed to the supposed absence of certain types
of evidence: "No evidence was presented concerning the chemical
content of the waterways affected by the defendant's facility. No evi-
dence of any increase in the salinity of the waterways, or any other
negative change in the ecosystem of the waterway was presented."
Gaston Copper Recycling, 9 F. Supp. 2d at 600. The district court
therefore concluded that "[n]o evidence was presented that any plain-
tiff member has been adversely affected by the defendant's conduct."
Id.We disagree. CLEAN has surpassed the threshold that Article III
and the Clean Water Act set for establishing a case or controversy.
10
Wilson Shealy is a classic example of an individual who has suffered
an environmental injury in fact fairly traceable to a defendant's con-
duct and likely to be redressed by the relief sought. The trial court
erred therefore in creating evidentiary barriers to standing that the
Constitution does not require and Congress has not embraced. In fact,
the legislative branch has invited precisely the type of suit brought by
CLEAN. The judicial branch is not at liberty to impede its resolution
on the merits.
A.
We proceed then to examine each of the three elements of the
standing inquiry. The injury in fact requirement precludes those with
merely generalized grievances from bringing suit to vindicate an
interest common to the entire public. See Lujan v. Defenders of
Wildlife, 504 U.S. at 575. A plaintiff must instead suffer an invasion
of a legally protected interest that is "concrete and particularized"
before he can bring an action. Id. at 560. He must somehow differen-
tiate himself from the mass of people who may find the conduct of
which he complains to be objectionable only in an abstract sense. In
other words, the alleged injury "must affect the plaintiff in a personal
and individual way." Id. at 560 n.1. Without this requirement, the fed-
eral judicial process would be transformed into"no more than a vehi-
cle for the vindication of the value interests of concerned bystanders."
Valley Forge, 454 U.S. at 473 (internal quotation marks omitted).
The injury in fact requirement also blocks suit by those whose alle-
gations of injury are based on mere conjecture rather than an actual
or threatened invasion of their legally protected interests. See Lujan
v. Defenders of Wildlife, 504 U.S. at 560. Federal jurisdiction cannot
lie if the alleged injury is merely "an ingenious academic exercise in
the conceivable." United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973). But this
standard is one of kind and not of degree. Indeed, the claimed injury
"need not be large, an identifiable trifle will suffice." Sierra Club v.
Cedar Point Oil Co., 73 F.3d 546, 557 (5th Cir. 1996) (internal quota-
tion marks omitted); see also Conservation Council of North Carolina
v. Costanzo, 505 F.2d 498, 501 (4th Cir. 1974) ("The claimed injury
need not be great or substantial; an identifiable trifle, if actual and
genuine, gives rise to standing." (internal quotation marks omitted)).
11
Shealy has plainly demonstrated injury in fact. He has produced
evidence of actual or threatened injury to a waterway in which he has
a legally protected interest. Shealy is a property owner whose lake lies
in the path of Gaston Copper's toxic chemical discharge. He and his
family swim and fish in this lake. Shealy testified that he and his fam-
ily swim less in and eat less fish from the lake because of his fears
of pollution from Gaston Copper's permit exceedances. Shealy fur-
ther claims that the pollution or threat of pollution has diminished the
value of his property. Indeed, others have referred to his lake as "the
polluted pond."
In fact, Shealy has alleged precisely those types of injuries that
Congress intended to prevent by enacting the Clean Water Act. One
of the well-recognized aims of the Act is to ensure that the nation's
waterways are "fishable and swimmable." See, e.g., Shanty Town
Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 784 (4th Cir. 1988).
Congress proclaimed this goal to provide "for the protection and
propagation of fish, shellfish, and wildlife and provide[ ] for recre-
ation in and on the water." 33 U.S.C. § 1251(a)(2). And it is well
established that the "injury required by Article III may exist solely by
virtue of statutes creating legal rights, the invasion of which creates
standing." Warth, 422 U.S. at 500 (internal quotation marks omitted).
Moreover, DHEC developed Gaston Copper's permit limits pursuant
to a statutory command to protect public health, fish, and wildlife and
to allow recreational activities on the water. See 33 U.S.C. § 1312(a).
These health and recreational interests are constitutionally recognized
as cognizable bases for injury in fact. See, e.g., Laidlaw, 120 S. Ct.
at 705; Sierra Club v. Morton, 405 U.S. at 734.
Shealy is thus anything but a roving environmental ombudsman
seeking to right environmental wrongs wherever he might find them.
He is a real person who owns a real home and lake in close proximity
to Gaston Copper. These facts unquestionably differentiate Shealy
from the general public. The company's discharge violations affect
the concrete, particularized legal rights of this specific citizen. He
brings this suit to vindicate his private interests in his and his family's
well-being -- not some ethereal public interest. We in turn are pre-
sented with an issue "traditionally thought to be capable of resolution
through the judicial process." Allen, 468 U.S. at 752 (internal quota-
tion marks omitted).
12
Further, CLEAN has presented ample evidence that Shealy's fears
are reasonable and not based on mere conjecture. The record is replete
with evidence that Gaston Copper is fouling its receiving waters.
Plaintiffs submitted discharge monitoring reports spanning more than
four years of Gaston Copper's operations. They allege that these
reports show over 500 violations of the company's discharge limits,
including unlawful releases of cadmium, copper, iron, lead, and zinc,
as well as pH violations.
Plaintiffs also offered evidence in the form of EPA studies and
expert testimony of the adverse health and environmental effects of
these chemicals. For example, copper is particularly toxic to aquatic
organisms and can prevent spawning in fish. See Joint Appendix at
183, 439. Human beings are sensitive to lead poisoning, which can
result in irreversible brain damage to children and other neurological
impairment. See J.A. at 185, 448. Cadmium is also toxic and may
cause a variety of health problems in humans, including cancer. See
J.A. at 186, 412-15. Iron is chronically toxic to aquatic organisms and
leads to rust formation, which in turn degrades the aesthetic quality
of the lake. See J.A. at 186. And disruption of the acceptable pH level
of a waterway may increase the toxicity of certain chemicals to fish.
See J.A. at 482-83.
Plaintiffs submitted further evidence that Gaston Copper's permit
exceedances could and did cause environmental degradation. To
begin with, many of Gaston Copper's discharge limits were estab-
lished by DHEC in order to attain a particular water quality. Because
these discharge restrictions are set at the level necessary to protect the
designated uses of the receiving waterways, their violation necessarily
means that these uses may be harmed. See, e.g. , Public Interest Group
of New Jersey, Inc. v. Rice, 774 F. Supp. 317, 328 (D.N.J. 1991). This
fact was confirmed by a DHEC employee called to the stand by Gas-
ton Copper at trial:
[Q:] And it's also assumed, is it not, that if you do not meet
those [water-quality-based discharge] limits, you may be
interfering with the designated uses of those waterways?
[A:] That's correct.
13
[Q:] And therefore if a designated use is swimming and you
don't meet those limits, you may very well be interfering
with the safety of swimming in that waterway?
[A:] That's correct.
In addition, Gaston Copper failed forty-one whole effluent toxicity
tests in the forty-nine months between March 1991 and March 1995.
These tests consisted of placing small organisms in effluent samples
and counting the number that sicken. And at least eight of these toxic-
ity failures were based on samples taken on days when the company
allegedly violated its effluent limits. Even the company's own studies
showed elevated quantities of cadmium, copper, lead, and mercury in
sediment taken from the facility's receiving waters and unnatural con-
centrations of metals in the tissue of fish. Gaston Copper's permit vio-
lations thus bear a direct relationship to the waterway's health.
Moreover, Gaston Copper's discharge affects or can affect the
waters for a significant distance downstream. The parties have stipu-
lated that the overflow from Lake Watson pours into Boggy Branch,
a tributary of Bull Swamp Creek, which empties into the Edisto
River. Yet plaintiffs offer far more than the stipulated description of
the downstream flow of the water. During the comment period for
Gaston Copper's permit, DHEC officially responded in writing to one
downstream property owner's question as follows:
[Q:] I own property where Bull Swamp goes into the Edisto
River, and I'd like to know, would the runoff go that far?
[A:] Yes, the runoff will go to Boggy Branch to Bull
Swamp to the Edisto River. The confluence of Bull Swamp
and [the] Edisto River is 16.5 miles.
Common sense dictates that the purpose of the question was to deter-
mine just how far downstream Gaston Copper's discharge would
affect property owners. And the clear implication of DHEC's
response is that Gaston Copper's discharges can impact the receiving
waterway for a good distance downstream -- well past Shealy's prop-
erty and on down to the Edisto River itself. Shealy's lake is fed by
14
Bull Swamp Creek only four miles downstream from the polluting
facility. DHEC has indicated that the runoff will reach at least as far
as the Edisto, which lies 12.5 miles beyond Shealy's property. Shea-
ly's lake and home therefore lie more than four times closer to Gaston
Copper than the acknowledged outer perimeter of the discharge zone.
As if this were not enough, Shealy has also presented uncontro-
verted testimony that the types of chemicals released into the water
by Gaston Copper had been previously found in his lake. DHEC
employees visited Shealy's property in the 1980s, analyzed the water
quality of his lake, and reported the presence of copper, zinc, nickel,
iron, and PCBs. These are the same chemicals that the plant released
in its wastewater during the tenures of both Gaston Copper and its
predecessor. Although these tests were conducted before Gaston Cop-
per took control of the facility in 1990, Gaston Copper operated the
smelting facility using a similar wastewater treatment system to that
of its predecessor. The evidence of past pollution is therefore directly
relevant to the question of whether Gaston Copper subsequently
affected or could affect Shealy's lake. Shealy's testimony that pollu-
tion of the type discharged by this system has reached his lake in the
past shows that his fears are based on more than mere speculation.
In sum, the evidence paints a stark picture: Gaston Copper has been
accused of violating its discharge permit. Its discharge affects or has
the potential to affect the waterway for 16.5 miles downstream. Wil-
son Shealy sits a mere four miles from the mouth of the discharge
pipe. The state has found the kinds of chemicals discharged by Gaston
Copper in Shealy's lake in the past. And federal and private studies
demonstrate the harmful environmental and health impacts of the
toxic chemicals released by Gaston Copper. When this evidence is
viewed in light of the legal threshold for standing, it is clear that the
district court erroneously dismissed plaintiffs' suit. Shealy's claim is
not a "generalized grievance" that relegates him to the status of a
"concerned bystander" with a mere abstract interest in the environ-
ment. Gaston Copper Recycling, 9 F. Supp. 2d at 600. While Shealy
is unquestionably "concerned," he is no mere"bystander." See Cedar
Point Oil Co., 73 F.3d at 556.
It is instructive to contrast Shealy's injury with the injuries alleged
by the plaintiffs in Lujan v. Defenders of Wildlife, 504 U.S. 555. In
15
that case, the Defenders of Wildlife sought to challenge a government
regulation that rendered the Endangered Species Act inapplicable to
American actions in foreign nations. See id. at 557-558. Two mem-
bers of the group alleged that they had traveled to foreign countries
and observed the habitats of certain endangered species. See id. at
563. They also professed an intent to return to those countries at some
indefinite future time in the hope of seeing the animals themselves.
See id. at 563-64. The members feared, however, that American
involvement in development projects abroad would damage the spe-
cies' habitats, thereby risking extinction and causing the members
harm. See id. at 563.
The Supreme Court dismissed the case for lack of standing because
plaintiff's members' allegations were insufficient to establish injury
in fact. See id. at 564-66. The members failed to show how damage
to the species would produce imminent injury to themselves. See id.
at 564. They could not demonstrate any injury "apart from their spe-
cial interest in the subject." Id. at 563 (internal quotation marks omit-
ted). Their "some day" intentions to return to the areas they had
visited were simply not enough. See id. at 564. The Court also
rejected a variety of theories connecting distant plaintiffs to areas of
impact on endangered species as "ingenious academic exercise[s] in
the conceivable." Id. at 566 (internal quotation marks omitted). The
most expansive of these theories would have recognized injury in fact
to "anyone who observes or works with an endangered species, any-
where in the world" resulting from "a single project affecting some
portion of that species with which he has no more specific connec-
tion." Id. at 567.
Shealy, by contrast, need not resort to such hypothetical harms to
demonstrate his injury in fact. He is not asserting a mere academic or
philosophical interest in the protection of the South Carolina water-
ways affected by Gaston Copper's pollution. Nor does he claim that
he merely "some day" intends to enjoy the use of his lake. Rather, he
is a property owner in the path of a toxic discharge whose injury is
ongoing. He is thus precisely the type of plaintiff that the Supreme
Court envisioned in Lujan v. Defenders of Wildlife -- namely, one
who is acting to protect a "threatened concrete interest of his" own.
504 U.S. at 573 n.8.
16
The district court, however, required that plaintiffs present further
evidence concerning one or more of the following: (1) "the chemical
content of the waterways affected by the defendant's facility"; (2)
"any increase in the salinity of the waterways"; and (3) "other nega-
tive change in the ecosystem of the waterway." Gaston Copper
Recycling, 9 F. Supp. 2d at 600. But the Supreme Court does not
require such proof. In Laidlaw, 120 S. Ct. at 704-05, the Court found
that several citizen affidavits attesting to reduced use of a waterway
out of reasonable fear and concern of pollution"adequately docu-
mented injury in fact." Each of the citizens alleged that he or she
would make greater recreational use of some part of the affected
waterway were it not for their concern about the harmful effects of
the defendant's discharges. See id. The Court required no evidence of
actual harm to the waterway, noting: "We have held that environmen-
tal plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons `for whom the aesthetic and rec-
reational values of the area will be lessened' by the challenged activ-
ity." Id. at 705 (quoting Sierra Club v. Morton, 405 U.S. at 735).
Nor has any circuit required additional scientific proof where there
was a direct nexus between the claimant and the area of environmen-
tal impairment. In Cedar Point Oil Co., for example, the Fifth Circuit
held that citizens' concern about water quality in Galveston Bay suf-
ficed as injury in fact where "[t]wo of the affiants live near Galveston
Bay and all of them use the bay for recreational activities." 73 F.3d
at 556. It was enough that "the affiants expressed fear that the dis-
charge . . . will impair their enjoyment of these activities because
these activities are dependent upon good water quality." Id.Likewise, in Friends of the Earth v. Consolidated Rail Corp., the
Second Circuit found that two citizen affidavits"quite adequately sat-
isfy the standing threshold." 768 F.2d 57, 61 (2d Cir. 1985). In the
first affidavit, a citizen stated that "he passes the Hudson [River] reg-
ularly and find[s] the pollution in the river offensive to [his] aesthetic
values." Id. (internal quotation marks omitted). In the second, a father
"averred that his children swim in the river, his son occasionally
fishes in the river and his family has and will continue to picnic along
the river." Id. And in United States v. Metropolitan St. Louis Sewer
Dist., the Eighth Circuit approved the standing of a citizens' group
whose members alleged that they "visit, cross, and frequently
17
observe" the Mississippi River and "from time to time . . . use these
waters for recreational purposes." 883 F.2d 54, 56 (8th Cir. 1989). In
none of these cases -- where incidentally the claims of standing were
weaker than the one before us -- did the court require further specific
allegations or evidence of the actual level of pollution in the water-
way.
Courts have also left no doubt that threatened injury to Shealy is
by itself injury in fact. The Supreme Court has consistently recog-
nized that threatened rather than actual injury can satisfy Article III
standing requirements. See, e.g., Valley Forge, 454 U.S. at 472;
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
"[O]ne does not have to await the consummation of threatened injury
to obtain preventive relief. If the injury is certainly impending that is
enough." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289,
298 (1979) (internal quotation marks omitted).
Threats or increased risk thus constitutes cognizable harm. Threat-
ened environmental injury is by nature probabilistic. And yet other
circuits have had no trouble understanding the injurious nature of risk
itself. For example, in Village of Elk Grove Village v. Evans, the Sev-
enth Circuit found standing because "[t]he Village is in the path of a
potential flood" and "even a small probability of injury is sufficient
to create a case or controversy." 997 F.2d 328, 329 (7th Cir. 1993).
Similarly, the District of Columbia Circuit in Mountain States Legal
Found. v. Glickman held that an increased risk of wildfire from cer-
tain logging practices constitutes injury in fact. 92 F.3d 1228, 1234-
35 (D.C. Cir. 1996). And the Fifth Circuit in Cedar Point Oil Co. did
not require evidence of actual harm to the waterway, noting: "That
this injury is couched in terms of future impairment rather than past
impairment is of no moment." 73 F.3d at 556.
In this case, Gaston Copper's alleged permit violations threaten the
waters within the acknowledged range of its discharge, including the
lake on Shealy's property. By producing evidence that Gaston Copper
is polluting Shealy's nearby water source, CLEAN has shown an
increased risk to its member's downstream uses. This threatened
injury is sufficient to provide injury in fact. Shealy need not wait until
his lake becomes barren and sterile or assumes an unpleasant color
and smell before he can invoke the protections of the Clean Water
18
Act. Such a novel demand would eliminate the claims of those who
are directly threatened but not yet engulfed by an unlawful discharge.
Article III does not bar such concrete disputes from court. See Lujan
v. Defenders of Wildlife, 504 U.S. at 560-61.
Gaston Copper contends that Shealy has not supplied adequate
proof of environmental degradation to show injury in fact. "The rele-
vant showing for purposes of Article III standing, however, is not
injury to the environment but injury to the plaintiff. To insist upon the
former rather than the latter as part of the standing inquiry . . . is to
raise the standing hurdle higher than the necessary showing for suc-
cess on the merits in an action alleging noncompliance with an
NPDES permit." Laidlaw, 120 S. Ct. at 704. Shealy's reasonable fear
and concern about the effects of Gaston Copper's discharge, sup-
ported by objective evidence, directly affect his recreational and eco-
nomic interests. This impact constitutes injury in fact. See id. at 705-
06. It requires no abstraction or conjecture to understand the harm that
confronts Shealy. We therefore have no doubt that Shealy can be
counted "among the injured" for standing purposes. Lujan v. Defend-
ers of Wildlife, 504 U.S. at 563 (internal quotation marks omitted).
The district court's error lies in asking too much-- namely, in con-
structing barriers to an injured citizen's vindication of indisputably
private interests in the use of his property and in the health of his fam-
ily. Article III does not command such a judicial evisceration of the
Clean Water Act's protections. And separation of powers principles
will not countenance it.1
B.
CLEAN also satisfies the second prong of the standing inquiry.
_________________________________________________________________
1 It is clear that CLEAN member Shealy has demonstrated injury in
fact. The claims to injury of FOE members Jones and McCullough, how-
ever, present closer questions. The district court has not had an opportu-
nity to consider their claims in light of the Supreme Court's standing
analysis in Laidlaw, 120 S. Ct. at 704-06. We therefore remand Jones'
and McCullough's assertions of standing to the district court for evalua-
tion in light of Laidlaw. We leave to the discretion of the district court
whether to reopen the record for further testimony on the question of
FOE's standing.
19
The "fairly traceable" requirement ensures that there is a genuine
nexus between a plaintiff's injury and a defendant's alleged illegal
conduct. See Lujan v. Defenders of Wildlife, 504 U.S. at 560. But
traceability "`does not mean that plaintiffs must show to a scientific
certainty that defendant's effluent . . . caused the precise harm suf-
fered by the plaintiffs.'" Natural Resources Defense Council, Inc. v.
Watkins, 954 F.2d 974, 980 n.7 (4th Cir. 1992) (quoting Public Inter-
est Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913
F.2d 64, 72 (3d Cir. 1990)). If scientific certainty were the standard,
then plaintiffs would be required to supply costly, strict proof of cau-
sation to meet a threshold jurisdictional requirement -- even where,
as here, the asserted cause of action does not itself require such proof.
Thus, the "fairly traceable" standard is "`not equivalent to a require-
ment of tort causation.'" Id. (quoting Powell Duffryn Terminals, 913
F.2d at 72). Other circuits have refused to interpret it as such. See
Cedar Point Oil Co., 73 F.3d at 557-58; Natural Resources Defense
Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 505 (3d Cir.
1993); Powell Duffryn Terminals, 913 F.2d at 72-73.
Rather than pinpointing the origins of particular molecules, a plain-
tiff "must merely show that a defendant discharges a pollutant that
causes or contributes to the kinds of injuries alleged" in the specific
geographic area of concern. Watkins, 954 F.2d at 980 (internal quota-
tion marks omitted). In this way a plaintiff demonstrates that a partic-
ular defendant's discharge has affected or has the potential to affect
his interests. See id. at 980-81.
CLEAN has satisfied this standard. Much of the evidence already
cited for Shealy's injury in fact also proves traceability to Gaston
Copper. Shealy testified to the past presence of metals in his lake of
the type discharged by Gaston Copper. Plaintiffs have also submitted
toxicity tests that show Gaston Copper is discharging pollutants at
levels that cause environmental degradation. In addition, plaintiffs
submitted evidence that the company's discharge will travel 16.5
miles downstream -- well beyond the four-mile point that is Shealy's
lake. Shealy's testimony, buttressed by objective evidence from
DHEC, thus establishes that his injuries are fairly traceable to Gaston
Copper.
Moreover, there is no suggestion that any entity other than Gaston
Copper is responsible for the injury in fact that Shealy has estab-
20
lished. The "fairly traceable" requirement is in large part designed to
ensure that the injury complained of is "not the result of the indepen-
dent action of some third party not before the court." Lujan v. Defend-
ers of Wildlife, 504 U.S. at 560 (internal quotation marks omitted).
Where a plaintiff has pointed to a polluting source as the seed of his
injury, and the owner of the polluting source has supplied no alterna-
tive culprit, the "fairly traceable" requirement can be said to be fairly
met. This is the case here. As we have held, Shealy has shown injury
in fact. This injury must, of course, be attributable to someone or
something. Shealy points to a definite polluting source -- namely,
Gaston Copper -- and supports this contention with objective evi-
dence. Gaston Copper points to no other polluting source in response.
Its efforts to contest the traceability of Shealy's injury to its facility
therefore fail.
We decline to transform the "fairly traceable" requirement into the
kind of scientific inquiry that neither the Supreme Court nor Congress
intended. The absence of laboratory analysis of the chemical content,
salinity, or ecosystem of Shealy's lake is of no moment for one sim-
ple reason: The law does not require such evidence. While Article III
sets the minimum requirements for standing, Congress is entitled to
impose more exacting standing requirements for the vindication of
federal statutory rights if it wishes. Here the legislature chose to go
to the full extent of Article III in conferring standing on any person
with "an interest which is or may be adversely affected." 33 U.S.C.
§ 1365(g); National Sea Clammers, 453 U.S. at 16. To have standing
hinge on anything more in a Clean Water Act case would necessitate
the litigation of complicated issues of scientific fact that are entirely
collateral to the question Congress wished resolved-- namely,
whether a defendant has exceeded its permit limits.
In applying the "fairly traceable" requirement, some distinction, of
course, must be made between plaintiffs who lie within the discharge
zone of a polluter and those who are so far downstream that their inju-
ries cannot fairly be traced to that defendant. Compare Friends of the
Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 361-62 (5th
Cir. 1996) (finding an eighteen-mile distance "too large to infer cau-
sation"), with Friends of the Earth, Inc. v. Chevron Chem. Co., 900
F. Supp. 67, 75 (E.D. Tex. 1995) (finding a two-to-four-mile distance
sufficient to show causation). But to turn away a citizen who sits
21
squarely in the discharge zone of a polluting facility seems more cal-
culated "to negate the strict liability standard of the [Clean Water]
Act" than to articulate any meaningful distinction. Powell Duffryn
Terminals, 913 F.2d at 73 n.10. CLEAN has charged that (1) Gaston
Copper exceeds its discharge permit limits for chemicals that cause
the types of injuries Shealy alleges and that (2) Shealy's lake lies
within the range of that discharge. No court has required additional
proof of causation in such a case.
C.
Finally, CLEAN has standing because a favorable decision by the
district court will redress Shealy's injuries. The redressability require-
ment ensures that a plaintiff "personally would benefit in a tangible
way from the court's intervention." Warth, 422 U.S. at 508. A plain-
tiff seeking injunctive relief shows redressability by "alleg[ing] a con-
tinuing violation or the imminence of a future violation" of the statute
at issue. Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1019
(1998); see also Laidlaw, 120 S. Ct. at 707-08 (noting that Steel Co.
held that private plaintiffs may not sue to assess penalties for wholly
past violations).
Here CLEAN seeks injunctive and other relief for Gaston Copper's
continuing and threatened future violations of its permit. Not only did
CLEAN allege continuing violations in its complaint, but over 350 of
the alleged discharge violations and over 650 of the alleged monitor-
ing and reporting violations occurred after the complaint was filed. In
fact, some of the alleged violations occurred in 1997, the last period
for which the record contains evidence. CLEAN has sought relief for
continuing and threatened future violations at every stage of this liti-
gation, including this appeal. We hold therefore that CLEAN presents
claims of redressable injury.2
_________________________________________________________________
2 Because Shealy used a waterway adversely affected or capable of
being adversely affected by Gaston Copper's conduct, Gaston Copper's
monitoring and reporting violations also cause him injury in fact.
CLEAN alleges that these violations continue and requests injunctive
and other relief to stop them. CLEAN thus has standing to pursue its
monitoring and reporting claims under a straightforward application of
this circuit's precedent in Sierra Club v. Simkins Indus., Inc., 847 F.2d
22IV.
This case illustrates at heart the importance of judicial restraint.
Courts are not at liberty to write their own rules of evidence for envi-
ronmental standing by crediting only direct evidence of impairment.
Such elevated evidentiary hurdles are in no way mandated by Article
III. Nor are they permitted by the Federal Rules of Evidence or the
text of the Clean Water Act. It is in fact difficult to see how one can
move from the section 505(g) standard of "an interest which is or may
be adversely affected" to a standard of direct scientific proof of an
observable negative impact on a waterway.
Litigants routinely rely on circumstantial evidence to prove any
number of contested issues. And if a prosecutor may rely wholly on
circumstantial evidence to prove that a criminal defendant is guilty
beyond a reasonable doubt, there is no apparent reason -- and cer-
tainly not a reason apparent from the Constitution, the Federal Rules,
or the Clean Water Act itself -- to regard this type of proof as per
se deficient for establishing standing in a Clean Water Act case. Citi-
zens may thus rely on circumstantial evidence such as proximity to
polluting sources, predictions of discharge influence, and past pollu-
tion to prove both injury in fact and traceability. This is what Wilson
Shealy did. To require more would impose on Clean Water Act suits
a set of singularly difficult evidentiary standards.
To deny standing to Shealy here would further thwart congressio-
nal intent by recreating the old system of water quality standards
whose failure led to the enactment of the Clean Water Act in the first
place. See, e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79
Stat. 903. An important reason for Congress' shift to end-of-pipe stan-
dards was to eliminate the need to address complex questions of envi-
ronmental abasement and scientific traceability in enforcement
proceedings. To have standing now turn on direct evidence of such
things as the chemical composition and salinity of receiving waters
_________________________________________________________________
1109, 1112-13 (4th Cir. 1988) (defendant's failure to monitor and report
effluent discharges as required by permit causes injury in fact to plain-
tiff's interests in protecting environmental integrity of and curtailing
ongoing unlawful discharges into waterway).
23
would throw federal legislative efforts to control water pollution into
a time warp by judicially reinstating the previous statutory regime in
the form of escalated standing requirements. Courts would become
enmeshed in abstruse scientific discussions as standing questions
assumed a complicated life of their own. This danger is illustrated by
this very case, where the in-depth discussion of control stations,
macroinvertebrate sampling, and milligrams per kilogram has taken
us far afield from the straightforward Clean Water Act issue of
whether Gaston Copper has violated its permit limitations.
"[T]he law of Article III standing is built on a single basic idea --
the idea of separation of powers." Allen, 468 U.S. at 752. Courts must
avoid infringing this principle either by reaching beyond jurisdictional
limitations to decide abstract questions or by refusing to decide con-
crete cases that Congress wants adjudicated. This case presents a con-
crete controversy in which courts are left with no other choice but to
effectuate Congress' clearly expressed language and intent. To bar the
courthouse door to Shealy's claims of private injury would undermine
the citizen suit provision of the Clean Water Act. We therefore
reverse the judgment of the district court and remand this case for a
determination of whether Gaston Copper has discharged pollutants in
excess of its permit limits.
REVERSED AND REMANDED
NIEMEYER, Circuit Judge, concurring in the judgment and in the
concurring opinion of Judge Luttig:
For the reasons that follow, I concur in the judgment and join
Judge Luttig's concurring opinion.
The concept of constitutional standing lies at the heart of the judi-
cial power conferred on courts by Article III of the Constitution. As
the articulation of that standing requirement is relaxed, the scope of
Article III power expands, moving it to a position where it could be
exercised to resolve contests over legislation simply because citizens
disagree with its interpretation. With a continuation of this trend,
courts would ultimately become a super-legislative body, arbitrating
the conflicts of the views of its citizenry generally.
24
Before the Supreme Court's recent decision in Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693 (2000), I
would have affirmed the district court in this case because the plain-
tiffs, who expressed only a subjective belief of injury, have not shown
that they "personally [have] suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendant and that
the injury fairly can be traced to the challenged action." Valley Forge
Christian College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 472 (1982) (citations and internal quotation
marks omitted). These minimal requirements of Article III assured
that legal issues would not be resolved "in the rarified atmosphere of
a debating society." Id. The Supreme Court recognized in Valley
Forge that federal courts are not "publicly funded forums for the ven-
tilation of public grievances or the refinement of jurisprudential
understanding." Id. at 473; see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 559-60 (1992) (standing is "an essential and unchang-
ing part of the case-or-controversy requirement of Article III" and the
separation of powers).
As my concurrence in Judge Luttig's opinion indicates, I believe
that the decision in Laidlaw represents a sea change in constitutional
standing principles, and in view of that decision I agree that we are
now required to reverse.
LUTTIG, Circuit Judge, with whom Judge Niemeyer joins, concur-
ring in the judgment:
I concur in the judgment of the court, but not in its opinion.
Through no fault of this court, the Supreme Court's recent decision
in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,
120 S. Ct. 693 (2000), has rendered much of the discussion in today's
opinion not merely unnecessary, but affirmatively confusing. Rather
than persist in the fiction (as we do in the court's opinion) that
Laidlaw was part of the fabric of standing jurisprudence at the time
of argument in this case, or worse (as we also do) that that decision
was merely an unexceptional reaffirmation of the Court's previous
precedents, I would simply reverse the district court's judgment on
the specific reasoning of the Supreme Court in Laidlaw and say little
else. The unfortunate implication left by the court's failure to address
the significant change in environmental standing doctrine worked by
25
the Supreme Court's recent decision in Laidlaw (and by the court's
comfortable, but mistaken, assumption that the Supreme Court's deci-
sions prior to Laidlaw themselves dictated the conclusion we reach
today), is that the district court seriously erred in its application of the
standing doctrine extant at the time that it ruled-- which it did not.
HAMILTON, Senior Circuit Judge, concurring in the judgment:
The Supreme Court's decision in Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 120 S. Ct. 693 (2000), has unnec-
essarily opened the standing floodgates, rendering our standing
inquiry "a sham," id. at 715 (Scalia, J., dissenting). However, being
bound by Laidlaw Envtl. Servs., I concur in the court's judgment
reversing the district court's judgment and remanding the case for a
determination as to whether Gaston Copper has discharged pollutants
in excess of its permit limits.
26